West Street Properties, LLC v. American States InsuranceWest Street Properties, LLC v. American States Insurance
Ordered that the order dated October 5, 2012, is modified, on the law, by deleting the provisions thereof denying those branches of the cross motion of the defendants American States Insurance Company, Liberty Mutual Insurance Group, and Safeco Insurance Company of America which were for summary judgment dismissing the action insofar as asserted against Liberty Mutual Insurance Group and Safeco Insurance Company of America, and substituting therefor provisions granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from; and it is further,
Ordered that the appeal from so much of the order dated May 13, 2013, as denied that branch of the motion of the defendants American States Insurance Company, Liberty Mutual Insurance Group, and Safeco Insurance Company of America which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeal from so much of the order dated May 13, 2013, as denied that branch of the motion of the defendants American States Insurance Company, Liberty Mutual Insurance Group, and Safeco Insurance Company of America which was for leave to renew those branches of their cross motion which were for summary judgment dismissing the action insofar as asserted against Liberty Mutual Insurance Group and Safeco Insurance Company of America are dismissed as academic in light of our determination on the appeal from the order dated October 5, 2012; and it is further,
Ordered that the order dated May 13, 2013, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants Liberty Mutual Insurance Group and Safeco Insurance Company of America, payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendant American States Insurance Company.
The plaintiff commenced this action by motion for summary judgment in lieu of complaint pursuant to
As pertinent to these appeals, American States, Liberty, and Safeco (hereinafter collectively the American States defendants) cross-moved for summary judgment dismissing the action insofar as asserted against them. The Supreme Court, by an order dated October 5, 2012, among other things, denied the cross motion. The American States defendants then moved for leave to renew and reargue their cross motion, and by order dated May 13, 2013, the motion was denied. The American States defendants appeal from so much of the order dated October 5, 2012, as denied their cross motion for summary judgment dismissing the action insofar as asserted against them and from the order denying their motion for leave to renew and reargue their cross motion.
The Supreme Court properly denied that branch of the American States defendants’ cross motion which was for summary judgment dismissing the action insofar as asserted against American States. Contrary to the American States defendants’ contention, the plaintiff was not collaterally estopped from commencing this direct action against American States based upon the outcome of a separate declaratory judgment action. American States prevailed in that declaratory judgment action against the defendants in the underlying action, as reflected in an order of the Supreme Court, Westchester County (Liebowitz, J.), dated December 22, 2011, and an order of the same court (Colabella, J.), dated June 27, 2012, which determined that American States is not obligated to defend and indemnify the defendants in the underlying action. However, those orders were entered upon the underlying defendants’ default, and thus, did not collaterally estop the plaintiff from bringing the instant, direct action against American States pursuant to
Further, American States defendants failed to demonstrate, prima facie, that American States properly disclaimed coverage of the underlying defendants’ claim pursuant to the subject policy. The noncooperation of an insured party in the defense of an action is a ground upon which an insurer may deny coverage, and may be asserted by the insurer as a defense in an ac
Contrary to the contention of the American States defendants, the Supreme Court did not err when, upon denying the plaintiff‘s motion pursuant to
The Supreme Court erred in denying that branch of the American States defendants’ cross motion which was for summary judgment dismissing the action insofar as asserted against Liberty and Safeco. Liberty and Safeco demonstrated, prima facie, that they did not issue the subject policy and were not responsible for payment of claims under the policy. In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In its order dated May 13, 2013, the Supreme Court properly denied, on the merits, that branch of the American States defendants’ motion which was for leave to renew that branch of their cross motion which was for summary judgment dismissing the action insofar as asserted against American States. The American States defendants did not provide new facts or new
The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Mastro, J.P., Austin, Maltese and Barros, JJ., concur.